Supreme Court immigration ruling: A win for Arizona, a call to action for Congress

The Supreme Court handed Arizona a hard fought victory in upholding the most contentious part of its immigration law. All other portions might be found constitutional, it seems, if Congress would state so explicitly in federal law. The decision should serve as a clarion call to Congress.

Ross D. Franklin/AP

Arizona Gov. Jan Brewer reacts to the Supreme Court decision on the Arizona immigration law SB 1070 June 25 in Phoenix.Op-ed contributor Dan Stein says 'It is now up to Congress to reassert its intent that state and local governments act in partnership with the federal government in enforcing US immigration laws.'

The Supreme Court Monday handed Arizona a hard-fought victory in upholding the most contentious part of the Arizona immigration law, section 2(b) of SB 1070. That section requires state and local enforcement officials to verify with federal authorities the immigration status of people they lawfully stop when they suspect they are in the country illegally.

This authority, the court held, is both authorized by federal law and a basic component of a state’s inherent enforcement function. Despite the determined opposition of the Obama administration and its allies, states can and will be full partners in assisting in enforcing our national immigration laws.

Yes, the court struck down three of the other key provisions of the Arizona law: penalizing aliens in the country illegally seeking unauthorized employment, allowing police to arrest (without a warrant) individuals suspected of a crime that might lead to deportation, and making it a crime for those in Arizona not to carry immigration papers. But Justice Anthony Kennedy’s majority opinion overturned these provisions on narrow legal grounds, arguing that they allowed a state to preempt what Congress has outlined as the role of the federal government to enforce immigration law.

But in that sense, Justice Kennedy’s majority opinion also makes it clear that the court respects Congress’s wide-ranging and exclusive authority to authorize states to assist in a variety of areas of immigration law enforcement.

The court’s opinion thus suggests that these other portions of the Arizona law might be found legal and constitutional, it seems, if Congress would state so explicitly in federal law. In each case where the court struck down a portion of the Arizona law, the court could not find explicit evidence of congressional intent to allow a state like Arizona to enact such a law.

The decision should serve as a clarion call to Congress to step forward and lead: Congress can now – and must – step up and authorize states to act in these areas to cooperatively enforce federal immigration law within their borders.

Of course, for anyone who makes the effort to review numerous immigration laws enacted over many years, it is clear that Congress has already given the green light to these kinds of laws. But the five justices joining the majority opinion apparently could not locate the various sections of the Immigration and Nationality Act where Congress sought to encourage this sort of state-federal cooperation.

That is a serious oversight on the part of the court. By itself, it creates a major setback for those who want real enforcement and credibility to our immigration limits. But it gets worse.

The court went further and inexplicably embraced the Obama administration’s claims of inherent and apparently unreviewable executive “prosecutorial discretion” (as it calls it), a series of memos that the Department of Homeland Security (DHS) says authorize it to simply allow millions of illegal immigrants to apply to remain in the Unites States indefinitely.

In effect, the majority of the justices upheld (embraced, really) the administration’s incredible claim that when it comes to visa and border enforcement “we don’t have to, and states can’t make us.”

For citizens and taxpayers, this is a massive threat to national and community self-determination, not to mention fiscal health. A politician, as President Obama has just shown with his unilateral decision to stop deporting many illegal immigrants under the age of 30, can now use special immigration favors for partisan political gamesmanship at taxpayers’ expense.

The majority opinion dutifully nods to the incredible public safety and fiscal challenges posed by Arizona’s border crisis, but simply dismisses the problem as something that the state has no say in ultimately stopping.

This is both irresponsible and unsustainable: Decisionmaking has been divided between those who make the decisions and those who must absorb the consequences. Local communities must be empowered to assert reasonable control over their destinies. Without effective state-federal partnerships in immigration enforcement, our very viability as a national enterprise is at stake.

The court’s ruling puts the ball squarely back in Congress’s court. It is now up to Congress to reassert its intent that state and local governments act in partnership with the federal government in enforcing US immigration laws. Congress must also clearly define the limits of the executive branch’s discretionary authority over immigration enforcement and rein in its ability to nullify the laws Congress passes by simply refusing to enforce those laws.

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The issue of local enforcement is not going away. The American people, who overwhelmingly favor the sort of enforcement strategy laid out in SB 1070, maintain the ultimate power to ensure that their elected officials enact and enforce immigration laws in a way that truly protects their interests.

Dan Stein is president of Federation for American Immigration Reform (FAIR).

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